Australian Telecommunications Commission v Pepper-Clayton, Henry John

I	I N THE FEDERAL	COURT	OF AUSTRALIA 1
I

NEWSOVTHWALES DISTRICT REGISTRY	1 No. G150 of 1983
1
GENERAL DIVISION	1

ON APPEAL FROM

THE

GENERAL

ADMINISTRATIVE

DIVISION OF TKE ADMLNISTRATIVE APPEALS TRIBUNAL

CONSTITUTED BY MR. J . O .

BALLARD

BETWEEN :

AUSTRALIAN

TELECOMMUNICATIONS

COMMISSION

Applicant

AND:

HENRY JOHN PEPPER-CLAYTOii

Respondent

O R D E R

JUDGE MAKING ORDER:	Neaves J.
DATE OF ORDER:	1 June 1984
W H E R E W E :	Canberra

THE COURT

ORDERS

THAT:

T h e

a p p e a l

a l l o w e d .

2 .

T h e

d e c i s i o n

t h e

A d m i n i s t r a t i v e

A p p e a l s

T r i b u n a l given on

18 May

1983 be

set a s i d e .

3 .

The

case

remitted t o the A d m i n i s t r a t i v e

A p p e a l s	Tr ibunal	t o b e h e a r d	and	d e c i d e d
again.

4 .

T h e

r e s p o n d e n t

p a y

the

a p p l i c a n t ' s

costs of

t h e

a p p e a l .

ON APPEAL FROM THE GENERAL ADMINSTRATIVE

DIVISION OF THE

ADMINISTRATIVE APPEALS TRIBUNAL

BETWEEN

AUSTRALIAN TELECOMMUNICATIONS

COMKISSION

Applicant

AND :

HENRY J O H N PEPPER-CLAYTON

Respondent

CORAM

Neaves J.

I	DATE	:	1 June 1 9 8 4
I	-
I

REASONS FOR JUDGMENT

Pursuant to sub-section

4 4 ( 1 ) or' the Adminis-

trative Appeals Tribunal Act

1 9 7 5

Australian Telecomuni-

cations Commission ("the applicant") has appealed to the

Court, on

a question

of law, from a decision

of the

Administrative Appeals Tribunal given

1 8 May

1 9 8 3 .

The Tribunal extended until that date

th time

f o r the

lodgmg of an application to the Tribunal by Henry

John

Pepper-Clayton ("the respondent") for a review

of a

decision made under the Compensation (Commonwealth on 28 June 1979.

It appears from medical reports, to which

shall refer, made by Dr.

C.B. Degotardi and Dr.

B. Bloch

that the respondent sustained personal injury

on three

occasions while travelling to or from

his employment as a

temporary tradesman with the applicant.

In January 1974

he fractured his right eighth and ninth ribs.

In 1975 he

fractured his left ankle and

on 1 July 1976 he slipped

on wet grass while walking home from work and twisted

his back and both knees.

It further appears that a determination was

made unc?er the Compensation Act awarding compensation

in respect of the incapacity arlsing from the injury

sustained on 1 July I976 and the respondent vas paid

compensation in accordance therewith.

On 11 September 1978 Dr. Degotardi, pyschiatrist,

made a report

on the respondent to the New South Wales

Director of the Cornnonwealth Department

of Health. The

circumstances in which

that report came to be made are not

apparent from the material before thc Court. Dr. Degotardi

reported -

L .

"1 cannot comment on his orthopedic

State, but

I accept the reports

in his file

and his own belief that he has a chronic

degenerative osteo-arthritis including

spondylosis.

It maybe (as in reports) that

this condition temporarily was exaggerated

in terms of his symptoms as a result of the

injury on 1. 7.76, but this would have only

been for a matter

of weeks

and would not

have any effect upon the condition after this.

His symptoms are excessive for the

condition and this

must be due to a neurotic

overlay of the physical condition. He also

has a general neurotic anxietyfdepressive

reaction secondary to his physical state.

These neurotic reactions have no causal

connection to the injuries stated

(23 .

1 . 7 4 ,

4.75, or 1.

7 . 7 6 ) but are purely to (e)

a reaction to the progressive degenerative disorder. He has an obsessional personality and these people commonly present with

neurotic reaction with any physical ill

health or physical limitations.

His ability to work has been reduced

to unemployability because of the combination

of his chronic degenerative osteo-arthritis

and his super-imposed chronic now specific	I
neurotic reactions."

On 1 June 1979 the respondent was seen by

Dr. Bloch, orthopaedic surgeon. He was referred to

Dr. Bloch by his general practitioner, Dr.

R. Richardson,

but, as Dr. Bloch's report states "an independent opinion

or assessment is required as a final

detemination is

pending" of the respondent's claim for compensation.

Dr. Bloch reported

"There is no orthopaedic cause for his

complaints and working as

a tradesman is

within his capacity easily,

in fact,

his

present level of activity supports this

vierr.

I see no reason

for medication nor a corset.

l' l

What	i s apparent i s e i t h e r a conscious

overemphasis

or motivat ion or there could be

genu ine neu ros i s bu t t h i s and i t s r e l a t ion -

I ,

s h i p t o

work

o r i n j u r y

i s out of my

province.

28 June 1979Mr .F . J .

McMahon,

a de lega te of

t h e Commissioner

f o r Employees'

Compensation

("the Commis-

s ione r" ) ,

made

determination under the Compensation Act

i n

the following

terms -

"In the

matter of the c la im of Henry John

PEPPER-CLAYTON for compensation

in respec t of

i n j u r y on

1 J u l y

1976.

DETERMINATION

the evidence before

m e ,

inc luding

spec ia l i s t medica l op in ion ,

f i n d t h a t

t h e e f f e c t s

t he pe r sona l i n ju ry

sus-

ta ined by

the sa id

Henry John Pepper-

Clayton on 1 J u l y 1976 have now ceased t o e x i s t .

NOW THEREFORE, in pursuance

the provis ions

the Compensation

(Commonwealth

Government

Employees) Act

1 9 7 1 , as amended,

and

f u r t h e r

to the de te rmina t ions prev ious ly

made

i n

t h i s m a t t e r ,

hereby determine:-

t he e f f ec t s o f t he pe r sona l i n ju ry

sus ta ined by

the sa id

Henry John

Pepper-Clayton on

1 Ju ly 1976 have

now

ceased to

ex ls t , and

from

t h e

da te of th i s de te rmina t ion the

Australian Telecommunications

Commission

ceases to

l i a b l e t o

pay

compensation

under

the

said

Act	i n respec t of the said personal

i n j u r y .

This

i s

the determination which

the respondent seeks

have reviewed

the Administrative Appeals Tribunal.

The respondent on or about

20 J u l y 1979 addressed

a	l e t t e r b e a r i n g	t h a t d a t e	t o	t h e	Commissioner.	I n view of
4 .

the importance which that letter has assumed in the

proceedings from which the present appeal is brought it

is desirable to set it Out in full.

It reads -

"I make application to have furnished

to me, the following:-

a) the claim for compensation and any other

documents furnished to the Commission by

me on my behalf,

or on behalf

of the

Authority which employed me (Telecom

Australia) in the matter	of the Deter-
mination and

All medical certificates obtained by the Commissioner in connection with the matter of the Determination, particularly the report of Dr. Bernard Bloch.

The determination to which

I refer is

'In the matter of the claim

of Henry John Pepper-

Clayton for compensation	in respect of injury on
1st July, 1976 . '

Further, I respectifly (sic) request an

extension of time to allow me to determin[el

an[d] which course of action

I may wish to take

when all evidence is examined."

By letter dated 13 August 1979 the Commissioner

replied, the reply including the folloving paragraphs

"Your request for copies of documents

in connection with your clalm trill be complied with as soon as the Departmental papers are received in this Office.

Concerning your application for extension

of time,

it is not clear which avenue of appeal

you are considering and, therefore, I am unable

to advise you in this regard. Your attention is

drawn to paragraph (12) of the attached notice

which indicates action

to be taken should

you

wish to apply to either the Compensation Tribunal or a prescribed Court for an extension of time.

You should note that there is no time limit for

the making of a request for reconsideration by

the Commissioner (paragraph	I ,	l0 of the notice
refers).

5 .

The notice referred to in that letter was a document

two pages setting out the rights given to a claimant under

the Compensation Act. Paragraphs

1 - 5 of the notice-

under the sub-heading "Rights", were in the following terms

REQUEST FOR STATEMENT OF REASONS FOR DETERMINATION	-
If you are dissatisfied with the determination and consider that it does not adequately state

the reasons for the determination

y u may request

the Commissioner to supply

you with a statement

setting out the reasons. (Section

61).

REQUEST FOR COPIES OF

DOCUMENTS - If you are

dissatisfied with the

determination, YOU may

request the Commissioner to

furnish-ybu

with

a copy of:

(a)

the claim for compensation and any other document furnished to the Commissioner by

you, or on your behalf,

or on behalf of

the Commonwealth,

in connection with a

matter or question to which the

detemina-

cion relates; and

(b)

any medical certificates obtained by the Commissioner in connection with a matter or question to which the determination relates. (Section 61).

REQUEST FOR RECONSIDERATION BY COMMISSIONER

If you request the Commlssioner to reconsider

the determination, he is required to do

s ,

provided you have not commenced a proceeding

as in ( 4 ) or

(5) below. (Section

2 0 ( 4 ) (b)).

REQUEST FOR REFERENCE TO COMPENSATION TRIBUNAL

You may request the Commissioner to refer a ~~ matter-or question to which the determination relates to a Compensation Tribunal for consider-

ation. (Section

6 1 ) .

APPLICATION TO A PRESCRIBED COURT

FO JUDICIAL

REVIEW - As an alternative to

( 4 ) above, you

may apply to a prescribed court for judicial

review of the determination. (Section

61)."

Paragraph 7 , dealing with the procedure

to be followed

to request a reference to

a Compensation Tribuna1,read-

6 .

"A request for reference

to a Compensation

Tribunal referred to in ( 4 ) above must be made

in writing and be served

on the Commissioner in

the manner indicated in

( 6 ) above.

It must set

out the grounds

on which the request is made and

be accompanied by a fee

of $2.00 (prescribed in

Regulation 19) which will be refunded

if the

Compensation Tribunal's decision

is in your favour.

A copy of the request must also

be served

on any

other claimant who is a party

to the determination

and on the Commonwealth by delivering

t, or send-

ing it by registered post, to the

Head Office of

the Department which employed the deceased employee

o r a Deputy Crown Solicitor for the Cornonwealth.

. If you decide to request a reference

to a Compen-

sation Tribunal,

you may find the information

paragraph (14) below of some assistance."

Paragraphs 9 - 13 set out the periods allowed

for requests

and applications. Paragraph 10 stated

that a request for

reconsideration by the Commissioner as mentioned

i paragraph

(3) might be made at any time but might

not be made if the

claimant had commenced action

f the kind referred

to in

paragraph 4 or paragraph 5 of the notice. Paragraph 11 set out the time limits prescribed for a equest for a reference

to a Compensation Tribunal or for an application	to a pre-
scribed court. It provided -

"Subject to (12 ) below, a person making a

request for a reference to a Compensation

Tribunal as in ( 4 ) above, or an application

to a prescribed Court as in

(5 ) above, must

do so within 60 days AFTER

THE DATE

OF SERVICE

03 THAT PERSON OF A COPY OF

THE DETERMINATION,

unless one of the following

applies:-

(a) if a request for a statement

of reasons

f o r the determination as in (1) above

was made within

15 days after the date

of service

of a copy of the determination

- then the period of

60 days RUNS FROM THE

DATE OF SERVICE

ON THE PERSON CONCERNED

THE STATEMENT setting out the reasons	for
the determinatlon;

7 .

if a request for reconsideration by

the Commissioner as in

( 3 ) above was

made within

30 days after the date of

se rv iceo facouvof thede te rmina t ion

then the peridd

of 60 days is extended

to 120 days lJHICH RUNS

FROM

THE DATE

OF SERVICE OF A COPY

OF THE DETERMINATION;

if both (a) and (b) apply, i.e., if a

request for a statement

of reasons for

the determination as

in (l) above was

made within 15 days after the

date-of

service of a copy of the determination

AND

a request for reconsideration by the

Commissioner as in ( 3 ) above was made

within 30 days after the date

of service

of a copy

of the determination

- then the

period is extended to

120 days WHICH

RUNS

FROM THE DATE

OF SERVICE OF THE STATEIENT

setting out the reasons for the deter-

minat ion.

Paragraph 12 read -

"A compensation Tribunal

or a prescribed Court

may extend the periods mentioned above and it

should be noted that

(a) A request for an extension

of time to make

a request under

( 4 ) above for a reference

to a Compensation Tribunal must be made in

writing. The grounds on which the request

is made must be stated and it must be

accompanied by the fee of $2.00 prescribed

in Regulation 19.

Where a fee of $2.00 is

paid in respect of a request for an exten-

sion of time, another fee

of $2.00 is not

payable in respect

of the request under

( 4 )

above and the fee will be refunded

if the

Compensation Tribunal's decision on the

request under ( 4 ) above is in your favour.

A request for an extension of time should

be served on the Comissioner in the manner

indicated in (6 ) above. Within 7 days

of the date on which the request was

served on the Commissioner,

a copy of

the request must also be served on the Commonwealth in the manner indlcated in

( 7 ) above. (Section

77).

(b)

app l i ca t ion

prescr ibed Cour t

for

extension of

time

should be

i n wr i t ing .

should set out the grounds

t h e

app l i ca t ion

and be lodged

with

t h e

appro-

p r i a t e o f f i c e r o f t h a t C o u r t

see

(8)

above

and (15) below. Within 7 days

lodging the appl icat ion with the Court ,

a copy of the appl ica t ion

must be served

on the

Commissioner

and the Commonwealth

in the

same manner

as i n d i c a t e d i n (6)

and (7) above.

(Section

91)."

Paragraph

13 deal t wi th ques t ions concern ing cos ts

and

paragraph 14 set out some additional information concerning

proceedings before

a Compensation

Tribunal.

Paragraph

iden t i f i ed the p re sc r ibed Cour t s .

By letter dated 7 December 1979 the respondent

reques ted the Cqmiss ioner to recons ider the de te rmina t ion

28 June 1979 .

The

l e t t e r con ta ined

the

fo l lowing

paragraphs -

I t The

reason

reques t t h i s r econs ide ra t ion

i s

t h a t I have

and

s t i l l do

su f fe r cons i s t en t

p a i n

and

d iscomfor t s ince the personal in jury

sus-

ta ined on

1st J u l y 1976.

To assist wi th allevi-

a t i n g t h e p a i n

and

discomfort ,

s t i l l requi re

medical

treatment,

and pharmaceutical medication,

cost of which has been placed

s ince my

i n

ury .

P r i o r t o t h e i n j u r y

was

able to perform

du t i e s w i th Aus t r a l i an Te lecomunica t ions

Commission

t o t h e

level of Telecom Tradesman,

without

any d i f f i c u l t i e s .

I now

f i n d

t h a t

cannot perform these duties

and have been

c l a s s i f i e d unemployable because

com-

binat ion of chronic degenerat ive osteo-

a r t h r i t i s	and continued nervous and physical
condi t ion .

physical, nervous

and

a r t h r i t i c c o n d i t i o n s

have degenerated only s

ince the injury

was

sus ta ined and

seek your reconsideration

the previous determinat ion

t h i s m a t t e r . "

The Commissioner replied by letter dated

December 1979 reading as

folbws -

"I refer to your letter of

7 December

1979 in which

you have requested

that the

determination of 28 June 1979 be reconsidered.

That determination was made

on the basis

of Dr Bernard Bloch's report of

1 Juqe 1979,

copy of which

was supplied to you on 6 Septem-

ber 1979 and the Commissioner would probably

have regard to that report when he makes his

re-consideration. You may, however, submit

medical evidence, preferably from a specialist,

to refute Dr Bloch's report and ask that it be

taken into account when the Comissioner makes

his reconsideration. Would you please advise

me if you intend to obtain and to submit such

medical evidence

- ' I

The respondent resolved to pursue the matter by obtaining fu'rther medical evidence to support his case.

By letter dated

3 January 1980 he

so informed the Commis-

sioner and stated

that he would not be in

a position to

make the necessary arrangements to obtain such medical

opinion until sometime

in February 1980.

No medical evidence was submitted

to the

Commissioner by or on behalf

o the respondent and the

Commissioner, by letter dated 6 May 1980, asked the respondent if he intended submitting medical evidence in support of his request for reconsideration. The letter went on -

"In the absence

of any reply within

21 days

of the date

of this letter it will be assumed

that you do not

wish the Commissioner to

proceed with a reconsideration of the deter-

mination of 28

June 1979."

10.

Nothing further was done by

or on behalf of the

respondent until

26 August 1982, that is some two years

and three inonths later. On that date a letter was addressed

by the respondent's solicitors to the Acting Secretary,

Australian Telecommunications Employees' Association. It

may be assumed from the terms

of the letter that the

respondent was referred to the solicitors by the Association.

The letter contained the following paragraph

"Should the member desire to pursue the claim

through the appropriate tribunal

we reconmend

that he made (U)

a further formal application

for compensation which application would pre- sumably receive an unfavourable reply from the Comissioner for Employees' Compensation which

unfavourable determination ought to be the subject of an application for review within the time limit supplied."

On 30 August 1982 the respondent lodged with

the applicant a claim €or compensation in respect

of the

injury sustained on 1 July 1 9 7 6 .

The claim is not in

evidence but by letter dated

3 September 1982 the

applicant informed the respondent as follows

"I refer to the claim for compensation made

by you on 30 August 1982, in respect of

injury on 1 July 1976.

It is not proposed to take any action on

this claim, as it is in duplication of the

original claim

of 3 August 1976 in respect

of the same injury.

To substantiate this, I have attached photo-

copies of your original

claim, the decision

of the Cormnissioner for Employees' Conpensa- tion dated 28 June 1 9 7 9 , which formally re- jected liability, and associated correspondence

concerning your appeal rights."

By letter dated

21 September 1982 the solicitors

for the respondent asked the Commissioner whether

he was

prepared to waive the limitation under the Compensation

Act of the time within which an application for review

might be made to the Administrative Appeals Tribunal

f rom

the determination of 28 June 1979.

The Comissioner was

apparently not prepared to do

so.

By letter dated 1 October 1932 the solicitors

for the respondent informed the Registrar

of the Adminis-

trative Appeals Tribunal that the respondent had instructed

them "to make a further application to the Tribunal

for

an extension

of time in which to lodge the appropriate

application" against the determination

of 28 June 1979.

The solicitors asked "if some consideration could be given to this request".

A formal application for the extension

of the

time to lodge an application for review

of the determina-

tion was not made until

7 February 1983 and this was the

application upon which the decision from which this appeal

is brought was made. The

groundsuponwhich the respondent

(in the document called "the applicant") sought an extension

of time were -

"1.	The applicant was not aware of the limitation period for the filing of Application for Review of Decision.

2. Upon receipt of the Determination the

Applicant communicated with

hls Indus-

12.

trial Union and incorrectly presumed

that all appropriate steps were taken

to protect his interest."

The application was made pursuant to sub-section

29(7) of the Administrative Appeals Tribunal Act 1975

which provides

"(7) The Tribunal may, upon application in

writing by a person, extend

the time for

the

making by that person

of an application

the Tribunal for a review of a decision

(including a decision made before the com-

mencement of this section)."

The time for making an application to the Tribunal for a review of a decision may be extended under that sub-section

although that time has expired (sub-section

29(8)).

During the hearing

of the application the

Tribunal stated that it proposed to follow the formulation

by Bray C.3. in Ulowski v. Miller (1968) S.A.S.R. 277

the principles upon which a discretion should be exercised

in deciding whether an action should be dismissed for want

of prosecution. His Honour said, at

p. 280 -

"In these cases, as perhaps might be

expected, a variety of opinions has been

expressed in language differing in emphasis

and sometimes in substance. I do not think

it necessary or desirable to attempt to

canvass them case by case. It must be

remembered that we are dealing here with

a discretion and

in my view it ought not

to be fettered by any absolute or inflexible

rules.

It clearly appears from these cases

that five paramount matters to be considered

are the length of the delay, the explanation

for the delay, the hardship to the plaintiff

13.

if t h e a c t i o n

i s

dismissed and the

cause

ac t ion

l e f t

s ta tu te -bar red , the pre judice

to the defendant

i f

t he ac t ion

a l lowed to

proceed notwithstanding the delay,

and the

conduct

the defendant

i n

t h e l i t i g a t i o n . "

Reference was

a l s o made

t o Re Parker

and

the

Common-

wealth of Aus t r a l i a (No.

1) (1979) 1 CCN No

43 and

Brardsworth and the

Cormnonwealth

o f Aus t r a l i a

(1981)

CCN 79.

Apart

from

t h e comment

t h a t t h e p r i n c i p l e s

were

s t a t e d by Bray

C . J .

i n t h e c o n t e x t

o f

l i t i g a t i o n a n d ,

t he re fo re , may need

some

re-statement

in order to adapt

them

to proceedings before

admin i s t r a t ive t r i buna l ,

ne i ther par ty wished to contend tha t the mat te rs re fer red

t o by

h i s Honour

and

the Tribunal

i n t h e c a s e s c i t e d

were

no t appropr i a t e t o

considered

i n exe rc i s ing the

d i s c r e t i o n

which sub-section

29(7 )

the Adminis t ra t ive

Appeals Tribunal Act 1975 vests in the Tribunal.

the conclusion of the argument the Tribunal

ordered that the t ime for the lodging

an appl ica t ion

for review of the determinat ion

extended to

18 May

1983.

The	reasons for reaching that conclusion were expressed

as follows -

"The act ion taken

by the Commissioner

i n 1979,

when

the appl icant wrote applying

f o r

an extension of t ime,

was

u t t e r l y wrong.

A t that

t ime

the

l a w provided

that appl ica-

t i ons fo r ex tens ion

time

f o r r e fe rence to

t h e

Compensation Tribunal be lodged with the

Commissioner.

It was not

un t i l

October

tha t

1 4 .

year that the amendment was made to provide

for lodgment with the Compensation Tribunal.

That letter should have been passed to the

Compensation Tribunal. If the applicant

had been applying

to the prescribed court,

that is the Workers' Compensation

Comission,

he would have applied directly to that court.

It is entirely wrong

of the Commission[er]

to have failed to have passed

that application

at that time to the then Compensation Tribunal.

It seems to me, following from that, that

there is any prejudice to the Cornonwealth,

it is entirely due to the action

of the Com-

mission[erl. Furthermore, since Telecom

Australia have refused to consider a subsequent

claim because it

was on the same facts. a

suggestion as to proper procedure

would again

have to be made. The prejudice to the applicant is much greater than the prejudice to the respondent. An extension of time will there-

fore be granted. I will prepare a formal order

I	of extension of time."

It is clear that the Tribunal based its decision

on the failure of the Commissioner to transmit to a Compen- sation Tribunal established under the Compensation Act in the form in which it then stood what the Tribunal

regarded as an application by the respondent for

an extension

of time under section

77 of that Act within

which to serve

a request on the Commissioner under section

76 f o r the

reference of the question

f his continued entitlement to

compensation to a Compensation Tribunal for reconsideration.

That circumstance was said to have had the result that any

prejudice to the Commonwealth (presumably intended to be

a reference to the Australian Telecommunications Commission)

was due to the failure

of the Commissioner to act in the

manner indicated. Finally It was said that the prejudice

to the applicant, presumably that arising from the failure

15.

of the Commissioner to transmit the application for

extension of time, outweighed any prejudice suffered by

the Australian Telecommunications Commission.

It is also clear that the Tribunal regarded the

I ’

letter dated 20 July 1979 from the respondent to the

Commissioner as being an application for extension

of time

under section

77 of the Act which, by virtue

of sub-section

( 4 ) of that section read with section

78, the Commissioner

was bound to send to the Clerk

of a Compensation Tribunal.

In my opinion there was

no basis upon which the

Tribunal could properly

so find. The letter is

not expressed

to be such an application

- it sough

tan extension of time to

allow the respondent to determine if he wished to have the

determination of 28 June 1979 reviewed and, if

so, which

of the alternative courses open to him he wished to pursue.

There are, in addition, other factors supporting the view

that the respondent was not then seeking an extension

time to have the matter reviewed by a Compensation Tribunal.

First, the letter did not set

ou , even in rudimentary

form,

the grounds

of the request as required by sub-section

77(2)

and it was not accompanied, so far as the evidence shows, by the prescribed fee. That these were necessary require-

ments had been conveyed to the respondent

i the document

attached to the

Commxsioner’s letter to him dated

13 August

1979. Secondly, one rrould have expected that, had the

16.

respondent regarded his letter dated

20 July 1979 as a

request for extension

of time to have the matter reviewed

by a Compensation Tribunal, he would have taken steps to

inform the Commissioner of that fact immediately upon

receipt of the Commissioner's letter dated

13 August 1979.

Thirdly, the respondent subsequently chose to request that

the matter be reconsidered by the

Comissioner (see his

letter to the

Comissioner dated 7 December 1979) .

Having taken that erroneousview

of the letter

dated 20 July 1979 and of the Commissioner's obligations

in relation to

it, the Tribunal discounted entirely the

very lengthy and totally unexplained delay between the

date of the determination,

18 June 1979, and the date

the application to the Tribunal for an extension

of time,

7 Februery 1983.

Further, the prejudlce arising from the

perceived failure of the Commissioner to fulfil his obliga-

tions in relation to the letter

of 20 July 1979 was regarded

as outweighing whatever prejudice may have been suffered by the Australian Telecommunications Commission by reason

of the delay in seeking	to challenge the determination of
28 June 1979.

I am, therefore, of opinion that the Tribunal

took into account an irrelevant consideration and failed

to give due welght to matters that

were relevant to the

exerclse of its discretion

The exercise of the discretion

17 .

has therefore miscarried and the decision

the Tribunal

must

s e t a s i d e .

The

quest ion then

is what

order should the Court

make.

Sub-section 4 4 ( 4 ) provides

that

Court

having

heard and determined the appeal,

may make

“such order

it th inks appropr ia te

by reason

i t s dec is ion” .

Sub-

sec t ion 4 4 ( 5 ) provides

“Without

l imi t ing by

implicat ion the

genera l i ty of sub-sec t ion

(

)

the orders

t h a t may

be made

the Federal Court of

Aus-

t r a l i a

on an appeal include an order affirm-

ing o r s e t t i ng a s ide the dec i s ion o f t he

Tribunal

and an order remi t t ing the case to

be heard and decided again, e i ther with or

without the hear ing

fur ther ev idence ,

the Tr ibunal in accordance wi th the d i rec t ions

o f t he

Cou‘rt .”

I	have considered the submission put on behalf

the appel

lant

that

the Court

should consider

the

appl icat ion for extension of t ime

i t s merits

and

t h a t

behalf

the respondent that the matter should

be remit ted to the Tribunal to

heard and decided

again.

Minis

ter

for

Immigrat ion

and

E thn ic Af fa i r s

C-ungor

( 1 9 8 2 )

4 2

A.L.R.

2 0 9 a t p p -

2 2 0 - 1

Sheppard

discussed the l imi ta t ions

upon

the

powers of

the

Court

when hearing an appeal

on a quest ion of

l a w under

sec t ion

the Administrative Appeals Tribunal Act

1975.

In Director-General of Social Services v .

Hangan

(1982)

45 A.L .R .

2 3 Toohey J. a t p p .

3 4 - 6

agreed wlth

the

view

ex-

pressed	by	Sheppard	J.	In the ea r l i e r ca se wh i l e F i t zge ra ld	J .
18.

a t

p .

r e se rved the ques t ion fo r fu r the r cons ide ra t ion .

I n a l l the circumstances

th ink the p re fe rab le

course

to remi t the mat te r to the Tr ibunal

t o

be heard

and

determined

again

and

I SO order .

The Tribunal w i l l

a t

l i b e r t y

t o receive such mater ia l

a s

t h e p a r t i e s

may

d e s i r e t o place before

i t .

The

respondent

must

pay

the

app l i can t ' s cos t s o f t he appea l .

c e r t i f y t h a t t h i s

and

the preceding

eighteen

(18)

pages

are

t r u e copy

the Reasons for

Judgment

here in

o f

the

Honourable Mr.

J u s t l c e Neaves.

Date: 1 June 1984

A s s o u a t e

1 9 .

[1984] FCA 159

1 Jun 1984